Cherry v. Heckler

• Decision Date: 20 May 1985
• Docket Number: No. 84-8335,84-8335
• Citation: 760 F.2d 1186
• Parties: , 9 Soc.Sec.Rep.Ser. 303, Unempl.Ins.Rep. CCH 16,111 Bettie Jo CHERRY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1186

760 F.2d 1186

94 A.L.R.Fed. 757, 9 Soc.Sec.Rep.Ser. 303,

Unempl.Ins.Rep. CCH 16,111

Bettie Jo CHERRY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services,

Defendants-Appellees.

No. 84-8335.

United States Court of Appeals, Eleventh Circuit.

May 20, 1985.

Deborah Whitmore Hicks, Barnesville, Ga., for plaintiff-appellant.

Frank L. Butler, III, Asst. U.S. Atty., Macon, Ga., Chris Bradfield, Asst. Regional Atty., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Bettie Jo Cherry appeals from a judgment of the United States District Court for the Middle District of Georgia upholding a final decision by the Secretary of Health and Human Services (Secretary) denying her claim for disability insurance benefits under the Supplemental Security Income program, 42 U.S.C. Secs. 1381 et seq., and the Disability Insurance Benefits program, 42 U.S.C. Secs. 401 et seq. We reverse and remand.

In September and October, 1979, Cherry applied for Disability Insurance Benefits and Supplemental Security Income (SSI), alleging she suffered from arthritis, bursitis, phlebitis, high blood pressure and accompanying pain. After a hearing, an administrative law judge (ALJ) determined on October 16, 1980, that she was not disabled. The Appeals Council denied review and Cherry declined to pursue the matter further.

On January 27, 1981, Cherry filed a second application for disability benefits and SSI, claiming she still suffered from the ailments alleged in her previous application as well as from nerves, headaches and kidney problems. An ALJ conducted a hearing and allegedly declined to reopen her 1979 application. He also determined that, despite her exertional impairments, she could perform unskilled sedentary work and suffered from no nonexertional impairments which would prevent her from doing such work. The ALJ then applied the medical-vocational grids to conclude that she was not disabled. After the Appeals Council denied review she filed this action in district court.

While the matter was pending, Cherry presented new evidence to the district court and the Appeals Council consisting of a medical report and answers to interrogatories by Dr. R.A. Maierhofer establishing that she suffered from significant psychological disorders. The Appeals Council pointed out that because a complaint had been filed in the district court it could not receive the evidence, but declared that the new information would not alter its conclusion. The district court subsequently affirmed the Secretary's determination that Cherry was not disabled and declined to remand the case for consideration of the new evidence.

On appeal, Cherry urges that the Secretary reopened her 1979 application by considering evidence of her disability prior to October 16, 1980, or, alternatively, that the Secretary erred by not reopening the first application. She also contends that the ALJ presiding over her second hearing failed to adequately develop facts with respect to her supposed drug addiction and psychological disorders, and that the finding that she is capable of doing unskilled sedentary work is not supported by substantial evidence. Finally, she claims that the case should be remanded for consideration of the new medical evidence and that she should be awarded costs and attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(B).

I. Reopening the 1979 Application.

A final decision by the Secretary will be deemed reopened if it is "reconsidered on the merits to any extent and at any administrative level." McGowan v. Harris, 666 F.2d 60, 65 (4th Cir.1981). Although the ALJ considering Cherry's second application for benefits reviewed evidence of her alleged disability before October 16, 1980, the date the decision denying her first claim became final, we do not believe this constituted a reopening. As the McGowan court stated:

[W]hen a social security claimant presents any claim that is arguably the same one earlier denied on the merits, the Secretary must in fairness look far enough into the proffered factual and legal support to determine whether it is the same claim, and if so, whether it should nevertheless be reopened as a discretionary matter.

Id. at 67. Our evaluation of the administrative proceedings indicates that the ALJ engaged in precisely this sort of analysis. After reviewing all the evidence, including that presented in support of the original application, the ALJ reasoned that there was insufficient new and material evidence to justify a reopening under the regulations. See 20 C.F.R. Secs. 404.988, 404.989 (conditions for reopening). Accordingly, the ALJ concluded that the second application for benefits would be denied under the doctrine of res judicata to the extent it alleged disability before October 16, 1980. The ultimate determination that Cherry was not disabled after that date was not based on the record of the prior proceeding. Cf. Brown v. Heckler, 565 F.Supp. 72 (E.D.Wisc.1983) (ALJ reopened prior application when he did not apply res judicata and based his ultimate disability determination on a review of the record of the prior application).

Alternatively, Cherry contends that the Secretary erred in not reopening the 1979 application. The decision not to reopen a previous application is not subject to judicial review "unless that refusal is challenged on constitutional grounds." Howard v. Califano, 590 F.2d 137, 138 (5th Cir.1979) (per curiam); ¹ see Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The grounds alleged must be "colorable" in order to confer subject matter jurisdiction. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Gipson v. Harris, 633 F.2d 120, 122 (8th Cir.1980). ²

Cherry argues that the Secretary's decision not to reopen her prior application was made in a manner which deprived her of her procedural due process rights. Specifically, she alleges that the Secretary made the decision without the benefit of the transcript of the original administrative hearing and without adequately developing evidence of her purported drug addiction and mental impairments. ³

These constitutional claims are sufficiently "colorable" to bestow subject matter jurisdiction on this court. ⁴ Compare Gipson, 633 F.2d at 122 (constitutional claim sufficiently colorable) with Howard, 590 F.2d at 138 (no colorable constitutional issue raised). In determining whether there is a substantive violation of due process, the Supreme Court directs attention to three factors:

[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Eldridge, 424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.

The private interest affected by the Secretary's reopening procedure is Cherry's right to disability benefits from June, 1979, the onset date alleged in her first application, see Record, vol. 2 at 76, 168, to October 16, 1980, the date the original decision acquired res judicata effect. ⁵ There is no question that this is a significant interest since an incorrect decision not to reopen would completely foreclose her opportunity to obtain these benefits. See Shrader v. Harris, 631 F.2d 297, 301 (4th Cir.1980) (procedural due process violated in part because claimant's interest was avoiding total, irrevocable deprivation of benefits); cf. Eldridge, supra (no due process violation in part because claimant's interest confined to avoiding suspension of payments between termination and a post-termination hearing).

We do not perceive, however, a significant risk of an erroneous deprivation of this interest through the procedures actually employed by the ALJ. Procedural due process requires only an opportunity to be heard "at a meaningful time and in a meaningful manner." Eldridge, 424 U.S. at 333, 96 S.Ct. at 902, 47 L.Ed.2d at 32. Cherry was represented by counsel at an administrative hearing and had the opportunity to present all information relevant to the reopening decision, as well as the right to appeal.

The Secretary's failure to further investigate Cherry's claims of drug addiction and mental problems did not deprive her of this meaningful opportunity. She did not list drug dependence as an impairment before the ALJ. Although there was a considerable amount of evidence that she took a variety of medications, ⁶ there is no indication in the record of addiction. To the contrary, for example, the evidence reveals that she recently significantly reduced her intake of Valium, conduct inconsistent with dependency on that drug. ⁷

Nor did the Secretary's failure to order a psychiatric examination of Cherry in light of information suggesting mental impairment deprive her of due process. The evidence before the ALJ indicated that she suffered from nervousness and depression, and had once contemplated suicide. ⁸ However, Cherry also testified that she was treated by Dr. Holloway for her nerves and depression and had improved to some extent. Record, vol. 2 at 62, 71. Although she maintained to the ALJ that her nerve problems were substantial, ⁹ Dr. Holloway did not list nervousness as part of his diagnosis in a medical report prepared for a state agency on January 29, 1981. ¹⁰ In addition, Dr. E. Montero examined Cherry and reported no impairment of her mental faculties.

In Ford v. Secretary of Health and Human Services, 659 F.2d 66, 69 (5th Cir. Unit B 1981), ¹¹ the court...